The Federal Supreme Court (STF) has ruled that the PIS and Cofins contributions cannot be excluded from the calculation basis of the Social Security Contribution on Gross Revenue (CPRB), consolidating yet another unfavorable position for taxpayers in the so-called “spin-off theories” derived from the “thesis of the century” — the exclusion of ICMS from the PIS and Cofins tax base (Theme 69).
The decision was rendered in Extraordinary Appeal (RE) No. 1.341.464, under the general repercussion system, with a unanimous vote, except for remarks by Justice Cármen Lúcia, who reiterated her dissenting view in relation to similar precedents.
Key Aspects of the Decision:
- CPRB as an Optional Regime with Its Own Tax Base:
The reporting Justice, André Mendonça, emphasized that the CPRB, introduced to relieve the payroll burden, is an elective regime and, as such, is governed by specific rules — including a broad definition of gross revenue as the tax base, which encompasses PIS and Cofins. - Distinction from the “Thesis of the Century” (Theme 69):
According to the Justice, the present case is distinct from the exclusion of ICMS from the PIS and Cofins base, as it concerns a specific tax regime designed by the legislature to foster certain economic sectors and includes its own set of fiscal advantages. - Economic Impact:
The decision eliminates a projected fiscal risk of BRL 1.3 billion, as previously estimated in the 2025 Budget Guidelines Law (LDO). - Remarks by Justice Cármen Lúcia:
Although maintaining her position against the inclusion of taxes such as ICMS and ISS in the CPRB base, the Justice aligned with the majority in the specific case.
Implications for Taxpayers:
- The ruling confirms the STF’s trend of rejecting the “spin-off theories” stemming from Theme 69, as previously seen in the decisions regarding the inclusion of ICMS and ISS in the CPRB base (RE 1.187.264 and RE 1.285.845).
- The decision reinforces that the exclusion of ICMS from the PIS and Cofins base does not automatically extend to other taxes or legal arguments.
- Companies that opt for the CPRB must be aware that, by choosing this regime, they accept its comprehensive tax base, which includes the very contributions levied on gross revenue.
The STF’s decision underscores the specific and voluntary nature of the CPRB, setting it apart from the cumulative and non-cumulative regimes applicable to PIS and Cofins.
Thus, the Court reaffirmed that, by adhering to the CPRB framework, the taxpayer accepts an expanded calculation base, which necessarily includes the contributions levied on gross revenue.